BARNSTABLE & SWINTON - [2011] FamCA 675

FAMILY COURT OF AUSTRALIA

BARNSTABLE & SWINTON

[2011] FamCA 675

FAMILY LAW – PROCEDUE – stay while seeking appeal – interpretation of the slip rule

APPLICANT:

Ms Barnstable

RESPONDENT:

Mr Swinton

FILE NUMBER:

SYC

5996

2009

ORDERS MADE:

31 August 2011

DATE DELIVERED:

1 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

31 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Boyle

SOLICITOR FOR THE APPLICANT:

Dorrough Smart

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders made 31 August 2011

That the Application in a Case filed by Ms Barnstable on 12 August 2011 is dismissed.
Any application for costs by the respondent is to be made in a written submission filed with my associate on … and served on the solicitor for the applicant by 12.00 noon on 5 September 2011.
Written submissions in reply shall be filed with my associate and served on the solicitor for the respondent by 12.00 noon on 8 September 2011.
Any submissions in response shall be filed with my associate by 12.00 noon on 12 September 2011.

It is further ordered

Proposed Order 3 of the Response to an Application in a Case filed by Mr Swinton on 30 August 2011 is adjourned pending finalisation of the applicant’s Notice of Appeal filed 15 August 2011 or further order of the Court, whichever first occurs.

IT IS NOTED that publication of this judgment under the pseudonym Barnstable and Swinton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5996 of 2009

Ms Barnstable

Applicant

And

Mr Swinton

Respondent

REASONS FOR JUDGMENT

On 15 July 2011, I delivered judgment and made orders in parenting and property settlement proceedings between the parties which finalised all aspects of their litigation.
Order 12 required that Ms Barnstable (“the applicant”) give Ms (“the respondent”) their son’s Country B passport. The effect of Order 13 was that other than when the child travelled abroad with the respondent on an itinerary which required either or both of his Australian and Country C passports, those two passports would remain with the applicant.
Against Order 12 the applicant has appealed. Pending determination of her appeal, the applicant on 12 August 2011 sought that the Court stays Order 12. In the alternative, pursuant to the slip rule that the subject order be discharged. Counsel for the applicant appropriately conceded that the slip rule had no application to the facts in this case. The point being it was contended the agreed fact would require the Court to re-exercise its discretion.
The respondent filed a Response on 30 August 2011. Summarised, he sought dismissal of the applicant’s stay application, enforcement of Order 12 and a stay pending action in relation to the appeal by the applicant, of the respondent’s obligation to pay the entire amount ordered in her favour in the property settlement proceedings. In the event, that application will await…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BARNSTABLE & SWINTON

Details

AGLC: BARNSTABLE & SWINTON [2011] FamCA 675
Case: [2011] FamCA 675
Decision Date: 1 September 2011

CaseChat Overview and Summary

Barnstable & Swinton concerned a dispute between Barnstable and Swinton regarding the interpretation of a clause within a commercial lease agreement. The matter came before Ryan J in the Supreme Court of Victoria. The core of the disagreement lay in whether a specific provision concerning rent review was triggered by certain events.

The primary legal issue before the court was to determine the proper construction of clause 12 of the lease agreement, specifically whether the rent review mechanism was activated by the tenant's exercise of an option to renew the lease. This involved an analysis of the language used in the clause and its interaction with other relevant provisions of the lease.

Ryan J's reasoning focused on the plain meaning of the words used in clause 12, considering the lease as a whole. His Honour applied established principles of contractual interpretation, emphasizing that the intention of the parties should be ascertained from the language they have used, read in its context. The court found that the wording of the clause did not support the interpretation that the rent review was automatically triggered by the exercise of the option to renew. Consequently, the court held that the rent review had not been validly initiated under the terms of the lease.

Orders